The US Law of Divorce and Dissolution of Marriage - Research Paper Example

US Law of Divorce and Dissolution of Marriage Introduction Today, divorce or dissolution of marriages have become common trends in the society. Thereasons are manifold, and coming to a decision to dissolve a marriage or obtain a divorce is both legally complicated and emotionally trying. Most of the times, divorce takes place because of marital problems that could have been solved but the parties to the marriage did not have the skills to solve the problems. However, there are some problems that inevitably lead to dissolution of marriage like physical abuse, infidelity and drug or alcohol addiction. Although divorces are becoming extremely common in every society and in every country, the incidence is higher in the United States compared to other countries. According to a survey report, 43 to 46 percent of all marriages that have happened in the US in the year 2000 will eventually end in divorce (Smith et al., 1453). This paper explores the US law of divorce and dissolution of marriage on the grounds of husband’s chronic alcoholism and physical violence. It shows that divorce and dissolution of marriage are two separate ways of separation. Hypothetical case: Questions What are the grounds for divorce in the US and will Jennifer be granted divorce on the grounds that her husband Martin is an alcohol addict and conducts physical violence on her? Being the custodian of a minor child will that partner receive spousal support, and will Jennifer get custody of her son considering that Martin is an alcohol addict, violent and aggressive? Answers As per Section 3105.01 of Ohio Divorce Law extreme cruel behavior of either spouse and chronic alcoholism of either spouse are considered as valid reasons for dissolution of marriage. Therefore, Jennifer was granted divorce. As for child custody, court considers the best interests of the child. In this case, it was granted that Martin is alcoholic and violent therefore Steve will not be safe if he stays with his father. Therefore, Jennifer was granted custody of her son. Moreover, Jennifer will find it difficult to do a full time job because she will have to look after a minor child; therefore she was spousal support. Statement of Facts Martin and Jennifer have been married for 9 years and they have a son Steve who is 7 years old. The first year was happy and peaceful for the newly married couple. In the beginning of their second year Martin left his old company and joined a new multinational company as a software developer. After joining the new company, Martin often complained about cultural dissatisfaction and low salary. This job dissatisfaction was manifested in Martin’s personal life as he began to get engaged in long arguments with his wife and began to neglect his son’s studies. Martin gradually developed a habit of drinking alcohol along with some of his colleagues either at office parties or at their residence. Initially, Jennifer was not concerned since Martin was a light drinker and although he returned home in late evenings slightly drunk he had control of his actions. However, within few weeks Martin began to return home heavily drunk and lost awareness of the way he behaved with his wife after returning home. In the first few months Jennifer tried to hide the truth about her husband’s alcohol abuse from her friends and relatives hoping that this problem will soon fade. Martin gradually became a chronic alcoholic and this led to physical beating and verbal abuse. Jennifer has bruises on her body as proof of physical abuse. Martin would also in his drunken state beat up his son and behave in an aggressive manner. Twice Steve had to be hospitalized for injuries once because he was injured by his father in inebriated state, and another time he burnt his hand when his parents were busy arguing. Both Jennifer and Steve would remain scared in the evenings when it would get time for Martin to return home from work. Martin and Jennifer’s disturbed relationship would take a heavy toll on their son Steve. He has lost concentration on his studies. His performance in school is deteriorating and often complaints come from school teacher that he falls asleep in class. For the last one year he hardly talks with anyone and refuses to participate in any extracurricular activities like sports. Steve’s health is also deteriorating as his level of appetite has become low. Moreover, Martin’s constant alcoholism has affected Jennifer psychologically. She is suffering from severe depression, anxiety and a distorted sense of reality. Because of her emotional state she is also failing to fulfill her responsibilities as a mother to Steve who is often feeling extremely neglected and unloved by his parents. Initially, Jennifer used to threaten to obtain a divorce. She hoped that this strategy would change her husband’s untoward behavior towards her. This strategy failed and finally Jennifer sued for divorce and has applied for legal custody of her son Steve. She has also stated one reason behind her wanting the divorce and that is reducing own risk of becoming an alcoholic. Often when her husband returned home with alcohol bottles, she became tempted to drink more because of the physical and mental torture that she suffered in the hands of her inebriated husband. Discussion There are two ways in which a marriage can be legally terminated. One is divorce and another is dissolution of marital relationship. Before filing a case for divorce, it is necessary that the complainant partner can claim that his or spouse has committed faults according to the statutory requirements. As per Section 3105.01 of Ohio Divorce Law, there are many causes that are permissible grounds for obtaining divorce – 1) either party has committed bigamy, 2) the accused party has been absent on own consent for a minimum of one year, 3) adultery, 4) extreme cruel behavior, 5) fraudulent contract, 6) any gross neglect of duty, 7) chronic alcoholic, 8) during the time the case is filed the accused party is imprisoned or is in a federal correctional institution, 9) if divorce has been obtained by one party outside the state of Ohio, then this party is released from the contract of marriage, but the other party remains bound to the marriage, 10) if the husband and wife have lived separately continuously for at least one year, and 11) incompatibility, unless denied by either party (“Ohio Laws and Rules”). The divorce will be granted only when the complainant party can prove his or her allegations against the other party. However, Ohio Divorce law allows permission for filing divorce even when there is no fault of the parties, and this is granted only when both parties are “living separate and apart for one year without interruption and without cohabitation, and incompatibility not denied by either party” (“Divorce and Dissolution”). The divorce mechanism starts once divorce case is filed in the court. Once filed, the necessary papers are dispatched to the other party, and further proceedings cannot begin before six weeks of the other party receiving the papers. This six week period is considered as a “cooling-off” period. During this period the concerned parties are allowed to reconsider their decision of procuring divorce. Any of the two parties can request the court for temporary orders during this six week period. The purpose of such request is to protect the family’s status with relation to finances or responsibilities towards minor or handicapped children. In many cases, the income of the parties is not sufficient to maintain separate households. The elements that are considered in temporary order include “designation of residential parent and allocation of the parental rights and responsibilities of minor children, child support, spousal support, and payment of attorney fees and litigation expenses” (“Divorce and Dissolution”). The court also has the right to order the concerned parties to refrain from attacking each other physically or verbally, and also to preserve family assets as those assets will be needed for distribution between both parties once divorce is granted (“Divorce and Dissolution”). During the course of the divorce proceedings, either one or both parties can investigate and assess all marital and non-marital assets of the other party. For this purpose, help can be taken from professionals to determine the value of real estate, businesses, pension plans and so on. In Ohio, there are no trial courts for divorce cases. The solutions to such cases are arrived at by consent of the parties or else judgement made by a trial judge or magistrate. Once a verdict is reached, it is taken accepted as the court’s order. After this, either one or both the parties can procure divorce without prolonged proceedings. On the final day of settlement, either one of the parties can remain present in case both cannot. However, if the concerned parties do not agree with the court’s verdict, then an appeal can be filed with the court of appeals. In that case, a panel of three judges will review the court’s decision (“Divorce and Dissolution”). In case of dissolution of marriage, the complications are lesser than divorce cases since many of the formalities of the latter are eliminated. For dissolution of marriage, it is not necessary that parties have committed any faults. It is known as “no-fault divorce”. Before a marriage dissolution is filed in a court, the need is that both parties have to agree to all the conditions that will be addressed for divorce. The elements that must be taken into consideration are “designation of a residential parent, parental rights, visitation, child support, spousal support, division of property, payment of debts, and payment of attorney fees” (“Divorce and Dissolution”). Since there is absence of subpoena power in dissolution cases, so parties will need to exchange information between them. However, like divorce cases professionals can be hired for assessment of assets and properties. Once the parties concur to an agreement, then dissolution case can be filed with the court, and the first hearing has to take place before 30 to 90 days are over. In this hearing, both the parties have to be present to confirm on few things like – 1) both the parties are in consent with the agreement drawn, 2) both the parties have duly revealed all their assets and liabilities, 3) both the parties have signed the agreement paper with consent, and 4) neither parties have any disagreement regarding dissolution of their marriage. Finally, the court will review the agreements and approve them. Since the court does not have any role to play while agreement is pending, therefore all the “temporary orders and possible hearings that might occur in a divorce case are avoided” (“Divorce and Dissolution”). In both divorce and dissolution of marriage, the final verdict is termination of marriage. Ohio Divorce Law considers spouse’s addiction to alcohol, violent behavior and extramarital affair as valid grounds for dissolution of marriage. Under Section 3105.01 of Ohio Divorce Law, verdict will be in favor of the innocent party and marriage can be dissolved for several causes that include extreme form of cruel behavior of one party of the marriage to the other, when one party has caused serious health injury or has caused danger to health of the other and when one party has been a habitual consumer of alcohol (“Ohio Laws and Rules”). In Jennifer and Martin’s case, Jennifer has filed suit for divorce citing all of the above mentioned grounds. She has discussed with her attorney her legal rights and best course of action to take. Alcoholism is considered by the US law as a valid reason for dissolution of marriage between husband and wife since it is an inappropriate conduct of a spouse. There is need for evidence when filing a suit for divorce. In this case Jennifer has applied for divorce on the grounds of alcoholism, physical abuse and also mental torture all of which are conditions for successful divorce cases. As evidence, Jennifer has submitted photos of her husband in drunken state and police reports of the complaints she has made against her husband. Moreover Jennifer’s friends, parents and sister will stand as witness of Martin’s consistent drunken behavior. Jennifer has also submitted bank statements, credit card bills of her husband which stand as proof of his voluminous purchase of alcohol. Jennifer filed for divorce in Ohio court since according to Section 3105.03 both she and her husband were residing in Columbus city for at least 6 months before filing for divorce and also all the offences caused by her husband happened within the state of New Hampshire (“Ohio Laws and Rules”). The court has granted the divorce with Jennifer getting custody of her son. Also, under Section 3105.18, spousal support means “any payment or payments to be made to a spouse or former spouse, or to a third party for the benefit of a spouse or a former spouse, that is both for sustenance and for support of the spouse or former spouse” (“Ohio Laws and Rules”). This is decided by assessing various factors which include relative earning capacity of parties, physical, mental and emotional conditions of the parties, duration of the marriage, inability of a party to do job outside the home because of minor child’s responsibility. Jennifer and Martin’s marriage existed for nine years which is a considerable period, and since she has custodian of a 7 year old son, she was granted spousal support. Spousal support in real cases In Vanderbilt v. Vanderbilt case of 1957, husband and wife separate when they were in California and since then the wife shifted to New York. Then the husband appealed in Neveda court for divorce. However, the wife could not appear in the court as she was not served the process. However a final verdict was declared which made them “freed and released from the bonds of matrimony and all duties and obligations thereof”. Subsequently, the wife appealed in New York court for separation from her husband and demanded alimony. Although the court did not have any legal rights over the husband, it nevertheless confiscated his property in New York and ordered the husband to make support payments to the wife (“Vanderbilt v. Vanderbilt”). In Estin v. Estin case of 1948, both husband and wife resided in New York City. It was in New York court that the wife obtained both separation and alimony. Subsequently, the husband obtained divorce from Neveda court and the wife was served the notice. However, she did not appear in the Neveda court. The husband then refrained from paying any more alimony for which the wife sued in New York Court for reimbursement of arrears. Since the husband had already obtained divorce from Neveda court so his divorce was sustained by the New York Court. However, he was ordered by the court to make full payment of the arrears to his wife (“Estin v. Estin”). Conclusion In America, Divorce and Marriage Dissolution Law is clear on this that alcoholic and abusive partner can be divorced by the innocent partner. The law also emphasizes on well-being of any children to couples who have sued for divorce. That is why, Jennifer was granted custody of her son because it will be harmful for Steve to remain with his father who is a chronic alcoholic. Divorce proceedings are fairly complicated processes in the US. The need is to get legal help from a lawyer who is competent and trustworthy. However, it is also recommended that the concerned parties remain aware of their legal rights regarding child custody, spousal support etc. References “Divorce and Dissolution” Ohiobar, n.d., February 13, 2014 from: https://www.ohiobar.org/forpublic/resources/lawyoucanuse/pages/lawyoucanuse-69.aspx “Estin v. Estin” US Supreme Court, n.d., February 14, 2014 from: http://supreme.justia.com/cases/federal/us/334/541/ “Ohio Laws and Rules” Ohio, n.d., February 13, 2014 from: http://codes.ohio.gov/orc/3105 Smith, Philip H. et al. “Women ending marriage to a problem drinking partner decrease their own risk for problem drinking”, Addiction, 107.8 (2012) 1453-61 “Vanderbilt v. Vanderbilt” US Supreme Court, n.d., February 13, 2014 from: http://supreme.justia.com/cases/federal/us/354/416/ Read More